Conference of Local and Specialty Bar Associations

A Conference of the Virginia State Bar.

Conference News and Information

August 29, 2008

Public Service is Theme of Baliles’s Speech

Former Gov. Gerald L. Baliles delivered the following remarks on the citizen lawyer at the July 21, 2008, Solo & Small-Firm Practitioner Forum in Virginia Beach, Virginia.

The Remarks of The Honorable Gerald L. Baliles Former Governor of Virginia Director of the Miller Center of Public Affairs at the University of Virginia Delivered at the Virginia State Bar Solo and Small-Firm Practitioner Forum Regent University School of Law Virginia Beach, Virginia July 21, 2008

Distinguished guests, ladies and gentlemen.

It’s a pleasure to be a part of your forum for solo and small-firm practitioners.

I grew up in a small town in a rural area along Southern Virginia’s Blue Ridge Parkway. I knew as a child, observed as a teenager, and worked with as an adult, many wonderful lawyers – in small towns and large ones – who were solo or small-firm attorneys. They have always impressed me with their dedication to the law, their representation of their clients and their leadership roles in their communities.

That’s what I want to talk about today – the decline of the citizen lawyer and necessary revival.

Bill Wilson, your program chair and a good friend of mine, is a good example of that citizen lawyer tradition that I want to talk about – a good lawyer who has found the time to serve in the Virginia General Assembly, on the board of Virginia Intermont College, chair of the Virginia State Bar’s Senior Law Section, a leader in his church and civic organizations.

When one thinks about it, Virginia has an unrivaled tradition of citizen lawyers – lawyers of honed ability and integrity who take positions of civic and political leadership, and apply their skills for the broad public good. Many of our schoolbook heroes from Virginia history (four hundred years of it now) are lawyers: Patrick Henry, Thomas Jefferson, James Monroe, John Marshall, Lewis Powell, Oliver W. Hill Sr. and Leroy R. Hassell Sr. – to name only several.

And this assembled gathering today – without flattery – brings together true citizen lawyers, of the first order, from across the commonwealth.

The profession is strong in Virginia, its seedbed, and is doing good work, all the political chatter and criticism notwithstanding.

A colleague and I were remarking the other day that the future of the profession is promising, too – the commonwealth today has a more glittering array of law schools, I think, than perhaps any other state.

But something hard to put a finger on, something hard to name exactly, increasingly feels awry with the profession, with OUR profession. I suspect you’ve had occasional senses of it, too.

According to an old Roman saying, an illness, that is at first hard to diagnose, but easy to treat, later becomes increasingly easy to diagnose but impossible to treat.

It’s hard to put a finger on it, this sense of something amiss, but I have it.

Sometimes the sense washes across me when I’m reading Virginia Lawyer’s Weekly and I see an article about this or that company “automating” some of its legal needs – having a software program fill out patent applications or employment contracts. Not too many years ago a bill was introduced in the General Assembly to allow automated legal kiosks that would dump out legal formula wills and divorce papers. And today, I’m sure you must have seen the advertisements by a recognizable name in the legal profession, about the convenience of visiting a website to find the forms to assist one with setting up wills, opening businesses, and a variety of related legal services anywhere in the country.

Sometimes it washes over me when I’m at a bar meeting and I talk to law students who express a deep concern that actually practicing law will be intolerable, and they lament heading down the track to becoming a lawyer. Or it rushes over me when I talk to lawyers in practice who are burned out and desperate to change careers.

I am not humorless, but it hits me when I hear the ubiquitous lawyer jokes, and I laugh at most of them.

It hit me recently when I realized how few lawyers there are now in the General Assembly – maybe two dozen. When I was first elected to the House some thirty years ago, almost three quarters of the member of the General Assembly were lawyers. The best, most substantive debates came up on the floor when a lawyer would ask a penetrating question that hadn’t been considered in committee. Citizen lawyers have been at the heart of the work of the General Assembly.

When I look at civic organizations today in Virginia, I likewise also often find myself wondering, where are the citizen lawyers? Automated contracts, lawyer jokes, nervous law students and burned-out lawyers point to a real unease with, and in, the profession. Our thinning ranks in the General Assembly and civic organizations, even bar activities, point to diminished leadership by citizen lawyers.

I think the unease and our diminished leadership are related.

Let me explain.

Over the past generation, to be sure, the billable hour, especially in the larger firms, has come to lord it over us like never before. The dizzying array of statues and regulations has only grown, demanding more and more time of us to keep pace, and fostering more and more tight specialization. In many regards wisely, we’ve become very conscious of conflicts of interest, and often preclude ourselves, and our law partners, from sitting on boards – public or private – with which we may do business in our practice.

The past few decades have brought us an increasing number of excuses for avoiding summons to leadership as a profession.

You’ve heard theses response, I’m sure: “I’m too busy” – “It’s outside what I do” –“I can’t, because I have a potential conflict.” Any of these, in any given circumstance, may be utterly appropriate for any one of us, individually, to say.

We may, though, have begun to say them collectively as a profession.

When we don’t rise to service, and our profession fails to deeply encourage it, it’s not entirely surprising that law students become nervous and lawyers become burned out – because I believe lawyers choose the profession and go into practice in order to contribute to the public good. Lawyers are practical, but lawyers also – especially the best – have a twinge of idealism, a yearning to do good, to act as citizen lawyers, in the long tradition.

Much of the dissatisfaction in the profession, I think, stems from frustration in not engaging in earnest in that tradition so proudly established in the commonwealth many generations ago.

In my judgment, we would very much help ourselves by a new devotion, as a profession, to leading as citizen lawyers. We would help our image and understanding with the public as well. But, most importantly, we would also further contribute to the public good, in vital ways, which others – non-lawyers – simply cannot accomplish with the same honed ability. Shaped by practice, lawyers have skills which are sorely missed when absent in public affairs.

Maybe we don’t enunciate these skills often enough.

Consider them with me quickly. On reflection I think it’s clear what is missing when we don’t offer them to the public good.

These “lawyers skills” fall into three basic categories – to my way of thinking. Put very simply, lawyers are good at connecting the dots; we’re good with language, and we’ve typically got a good “people sense.”

Let’s look briefly at each of these.

? Good at Connecting the Dots.Lawyers by profession assess risk all the time. All the time we’re thinking “how does this affect that?” We do this in almost everything we do – cases, contracts, transactions, advising. Having to assess risk all the time leads to very logical thinking. Lawyers have a practiced ability to see all the way through things and separate the wheat from the chaff.

This logical thinking, risk assessing, leads also to a honed sense for trends, especially with the government, which is, really a machine made up of law. Sensing trends – connecting the dots – is very important. Again and again throughout our history in Virginia and America, lawyers have stood to protect freedoms: Jefferson for religion, Lincoln against slavery, Thurgood Marshall for civil rights.

Lawyers have always known that the old saying from Shakespeare – “First thing we do, let’s kill all the lawyers” – is not a reproach but a compliment. Lawyers are especially entrusted to be guardians – whom tyrannizing and demagogic forces (at loose today, just as in history) would just as soon not have around.

? Good with Language.Lawyers, because we tend to write every day, tend to write well and precisely. And also, since by profession we’re required to speak frequently, we tend to speak well. Also importantly, with their practiced precision with language, lawyers tend to listen well too, and get to the heart of matters.

Language is crucial. The written word is what the public has to memorialize agreements and set policy and law. The spoken word is the means to explain and debate, so plainly vital to democracy.

? Good “People Sense.”Lawyers, because of what we do – in our practice, our pro bono work, in our duties as citizen lawyers – deal substantively with lots and lots of people doing lots and lots of different types of things – things the details of which lawyers come to have a real sense of. Because lawyers know and deal with so many different people in such detailed ways, we tend to be good at directing traffic – at making connections: “Oh you need help with this – well, Jones might be good to talk to; you might also try Smith.”

Related to this: law is a profession that especially has in it a real diversity of people too, something I’m very proud of. Lawyers, maybe a little more than the average person, know people of all colors and all stripes – making them even better at making connections.

On the “people sense” front as well, because of all of the people lawyers deal with and all of the human drama we witness, lawyers often have a good, quick sense of what motivates people. In a given situation, we have a honed sense for “what’s really going on,” for what games (if any) are being played and who’s playing them. We also usefully, even in the thick of debate with people on any given matter, understand that the disagreement is not – or need not be – personal, not ad hominem.

So, we’re good at connecting the dots, good with language, and have a good “people sense” – which is another way of saying: we’re good at helping bring some order, some understandability to things that are unclear, things that are hazy – unclear trends, unclear language, unclear situations with people.

In a complex, fractious world (only becoming more and more so) lawyers are clarifiers and harmonizers – or can be, when we take it upon ourselves to get involved.

I think a lack of involvement, that has been increasing, is at the root of the unease in the profession, and at the root of the unease with the profession.

I think a lack of involvement is also a harm to the public.

The public good – government and civic life – fundamentally depends on citizen lawyers, present from the beginning of the American experiment in free society, and depends on citizen lawyers’ rare abilities – to clarify, to harmonize.

I’m preaching to the very faithful here, of course, my friends. You carry the tradition.

Indulge me here, to close with a few thoughts.

You are citizen lawyers. So, keep serving – and offer to lead the organizations you are a part of. Take on new ones.

Very candidly, whether Republican or Democrat, consider public office. If not you, then who?

Find a young lawyer of promise – or two – or three – and tell them with conviction that they are a part of the Virginia tradition, unbroken, of citizen lawyers, with duties to the Commonwealth and the public good.

We can help with the needed revival of the citizen lawyer, already alive among you here. The way I see things, anything awry can be set straight, and our profession, already storied, should ensure that storied days are still ahead. That’s the way our predecessors thought. That’s what they would want us to do – all across Virginia.

There’s one other thing they might want me to say: It’s time to wrap things up and say thanks very much.

So, many thanks for lunch and the invitation to be a part of your proceedings.

Besides, as that non-lawyer, Mark Twain, used to say: “Being talked to death is a terrible way to go.”